Question:

I am starting a new business, which my wife has been very critical of, and I want to make sure it is my own separate property whether the business succeeds or fails.

What would I need to do to protect my business and keep it separate in case of divorce or other dispute down the road? 

Answer:

Separate property claims typically involve assets that a party owned prior to marriage, along with gifts, inheritance or assets received after separation or filing.

Separate property is typically awarded to the owner spouse unless the non-owner spouse can prove that he /she contributed to its acquisition, improvement or accumulation, or that absent a division of the separate property, the marital estate would be insufficient for his / her suitable support. For the purposes of identifying marital assets, the court will look at the date of the marriage and the date of filing, separation or entry of the judgment of divorce.

Another option would be a postnuptial agreement. If you and your wife intend to continue living as husband and wife, such agreements are enforceable when they relate to rights in the spouses’ estates on their deaths, but only if they are fair and equitable and are supported by sufficient legal consideration.

However, when you enter into this type of an agreement for the purpose of disposition of property in a potential future divorce or separation, such agreements have been held unenforceable and against public policy in the state of Michigan since they are thought to promote the parties’ future separation.

On the other hand, if you and your wife sign an agreement in contemplation of separation or divorce, that would be enforceable – in fact, they are held to the same standard as a contract and are enforceable absent fraud, duress or mutual mistake.

Remember, I am unable to provide you with anything more than general divorce tips for men, so please consult with a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, contact Cordell & Cordell.